At Cambodia War-Crimes Trial, Defendants Are Not All There

Nov 21, 2011 • 5:19 am

The four aged former Khmer Rouge leaders originally indicted by Cambodia’s war-crimes court (AFP)

By Brendan Brady / Phnom Penh

They are now aged and frail, but by historians’ accounts, they once conducted themselves with fervor: presiding over this Southeast Asian country’s holocaust as leading members of the ultra-communist Khmer Rouge and aggressively purging other regime officials to maintain their grip on power.

Opening statements start today in the trial of former Khmer Rouge leaders considered among the most influential surviving policymakers of the regime’s rule. From 1975 to ’79, the Khmer Rouge aimed to forge a socialist utopia by abolishing “corrupting” influences such as currency, schooling and religion and reorganizing the entire population into rural labor camps. Their revolution decimated at least 1.7 million Cambodians — nearly a quarter of the population at that time — through execution, overwork and starvation. Their case has been described as perhaps the most complex and historically significant trial since Nuremberg, which makes it all the more striking that all of the defendants seem too old, sick or recalcitrant to have much presence in court.

Just last Thursday, judges ruled that one of the defendants, 79-year-old Ieng Thirith, who served as the Khmer Rouge’s Social Affairs Minister and was the highest-ranking woman in the regime, was unfit to stand trial because of her mental state. Since being taken into custody in 2007, the former “First Lady” of the Khmer Rouge has been prone to erratic outbursts in court. In one such incident, in February 2009, she indignantly shouted at judges, “Don’t accuse me of murder, otherwise you will be cursed to the seventh level of hell.”

In recent months, court-appointed doctors diagnosed Ieng Thirith with dementia, likely caused by Alzheimer’s disease, which is degenerative. “The Chambers accepts the unanimous opinion of all experts that Ieng Thirith’s condition will likely deteriorate over the course of what is likely to be a complex and lengthy trial …,” judges wrote. According to international law, defendants must have sufficient physical and mental capacity to testify in their own defense and understand the nature of court proceedings. After an initial disagreement over what should come of the woman who researchers say orchestrated widespread purges of people considered disloyal to the revolution, the hybrid U.N.-Cambodian court’s judges eventually agreed to unconditionally release her. Prosecutors launched an appeal the following day with Cambodia’s Supreme Court, which has 15 days to make a final decision.

Remaining in the docket to face charges of genocide, crimes against humanity and war crimes are Ieng Sary, 86, Ieng Thirith’s husband and the former Khmer Rouge Foreign Minister; Khieu Samphan, 80, the official head of state; and Nuon Chea, 85, the regime’s chief ideologue and the second most powerful leader of the revolution. Though less combustible than their dismissed ex-colleague, the courtroom presence of these octogenarians has thus far been little more meaningful. They unanimously reject the charges against them, and all except Khieu Samphan have said they will refuse to cooperate with the court.

In June, on the first day of procedural hearings, they followed through on their pledge. Nuon Chea, clad in a knitted cap and sunglasses to stave off the facility’s air-conditioning and bright lights, walked wobbling out of the courtroom with the assistance of three security guards after claiming the tribunal was biased against him. Ieng Thirith, who appeared to doze off at times, then left too, citing poor health. Ieng Sary, who has urological problems, was later allowed to depart after judges initially tried to compel him to remain. Only Khieu Samphan remained in court that day, though scheduled breaks weren’t enough to prevent him from taking trips to the bathroom during the hearings.

Given the advanced age and health problems of the accused, the purpose-built tribunal includes holding cells below the court building with live video links so defendants can participate in proceedings remotely. As substantive hearings begin in the trial, the judges have yet to clearly outline what rules decide whether a defendant is allowed to leave the courtroom. The judges are “trying to distinguish between [defendants] who just don’t feel like attending and [defendants] who have a legitimate health excuse,” said Anne Heindel, who has monitored and written about the court extensively as a legal adviser for the Documentation Center of Cambodia, a local NGO that researches the Khmer Rouge. She added, however, that it remained unclear whether judges would try to compel any of the defendants to remain present at their trial.

The tone of the trial — known officially as Case 002 — is likely to contrast sharply with the tribunal’s first case, against former prison commandant Kaing Guek Eav, better known by his revolutionary alias Duch, who was handed a 35-year sentence last year. Though he ultimately shirked legal responsibility, he had acknowledged his crimes and, disposed to discourse as a former teacher and carrying pent-up energy after 11 years of pretrial detention, took delight in engaging with prosecutors, judges and witnesses. In fact, Duch, in his mid-60s and appearing in good health, often dominated and steered proceedings, delivering long explanations of the Khmer Rouge’s protocol and practices. Though his guile infuriated many Cambodians, Duch’s vibrancy made him a compelling protagonist, which was highlighted when a national television program that summarized the court’s proceedings became highly popular.

The participation of the Khmer Rouge leaders now on trial matters to victims anxious to see their former behind-the-scenes tormentors publicly scrutinized for the first time. “I want to see what the faces look like of people who behaved so cruelly,” said Paov Angchrev, a 57-year-old farmer who lost three siblings under the Khmer Rouge’s rule. Marie Chea, 60, who immigrated to the U.S. after she survived the Khmer Rouge’s rule and is attending this week’s court proceedings in Phnom Penh, said the court seemed more intent on protecting the rights of the defendants than of their victims.

“We’re fully aware there’s a need to explain proceedings,” said Lars Olsen, an international spokesman for the court. The court will continue to use public appearances and radio to explain court developments, including the recent ruling on Ieng Thirith. Maintaining resonance among Cambodians may be especially important for the tribunal as its credentials have suffered severe blows in other areas. Frequent delays, soaring costs (expected to reach $150 million by the end of the year), and charges of corruption and political interference by the Cambodian government have tarnished the court’s image.

“As far as Cambodians engaging [with the court], it’s disappointing,” said Clair Duffy, a court monitor in Phnom Penh for the U.S.-based legal advocacy group Open Society Justice Initiative. “They want to hear what the defendants have to say, and they want to see them in the courtroom.” But, she added, the judges’ apparent efforts to follow fair trial rights according to international practices should be respected, even if making such concessions to figures accused of being responsible for so many deaths seems quixotic. “With a lot of these issues, you have the law and you have the public perception, and often the two are not entirely reconcilable.”

Heindel of the Documentation Center of Cambodia said that the defendants’ attitudes toward their trial might change as hearings unfold. “It’s often the case that people start to engage because it’s their story and they don’t like what’s being said,” especially if the defendants become pitted against one another, she said. With or without the defendants present, the court “will proceed and deliberate,” said international co-prosecutor Andrew Cayley. And the court may well find an unexpected ally: convicted prison chief Duch is supposed to take the stand as a key witness against Case 002’s defendants.